the Committee on
Finance and the Committee on Appropriations of the Senate; and

(B)

the Committee on
Ways and Means and the Committee on Appropriations of the House of
Representatives.

(2)

Commissioner

The
term Commissioner means the Commissioner responsible for U.S.
Customs and Border Protection.

(3)

Covered
merchandise

The term covered merchandise means
merchandise that is subject to—

(A)

a countervailing
duty order issued under section 706 of the Tariff Act of 1930; or

(B)

an antidumping
duty order issued under section 736 of the Tariff Act of 1930.

(4)

Eligible small
business

(A)

In
general

The term eligible small business means any
business concern which, in the Commissioner’s judgment, due to its small size,
has neither adequate internal resources nor financial ability to obtain
qualified outside assistance in preparing and submitting for consideration
allegations of evasion.

(B)

Non-reviewability

Any
agency decision regarding whether a business concern is an eligible small
business for purposes of section 101(b)(3) is not reviewable by any other
agency or by any court.

(5)

Enter;
entry

The terms enter and entry refer
to the entry, or withdrawal from warehouse for consumption, in the customs
territory of the United States.

(6)

Evade;
evasion

The terms evade and evasion
refer to entering covered merchandise into the customs territory of the United
States by means of any document or electronically transmitted data or
information, written or oral statement, or act that is material and false, or
any omission that is material, and that results in any cash deposit or other
security or any amount of applicable antidumping or countervailing duties being
reduced or not being applied with respect to the merchandise.

(7)

Secretary

The
term Secretary means the Secretary of the Treasury.

(8)

Trade remedy
laws

The term trade remedy laws means title VII of
the Tariff Act of 1930.

3.

Application to
Canada and Mexico

Pursuant to
article 1902 of the North American Free Trade Agreement and section 408 of the
North American Free Trade Agreement Implementation Act (19 U.S.C. 3438), this
Act and the amendments made by this Act shall apply with respect to goods from
Canada and Mexico.

I

Actions relating
to enforcement of trade remedy laws

101.

Trade Remedy
Law Enforcement Division

(a)

Establishment

(1)

In
general

The Secretary of Homeland Security shall establish and
maintain within the Office of International Trade of U.S. Customs and Border
Protection, established under section 2(d) of the Act of March 3, 1927 (44
Stat. 1381, chapter 348; 19 U.S.C. 2072(d)), a Trade Remedy Law Enforcement
Division.

(2)

Composition

The
Trade Law Remedy Enforcement Division shall be composed of—

(A)

headquarters
personnel led by a Director, who shall report to the Assistant Commissioner of
the Office of International Trade; and

(B)

a National
Targeting and Analysis Group dedicated to preventing and countering
evasion.

(3)

Duties

The
Trade Remedy Law Enforcement Division shall be dedicated—

(A)

to the development
and administration of policies to prevent and counter evasion;

to the development
and conduct of commercial risk assessment targeting with respect to cargo
destined for the United States in accordance with subsection (c);

(D)

to issuing Trade
Alerts described in subsection (d); and

(E)

to the development
of policies for the application of single entry and continuous bonds for
entries of covered merchandise to sufficiently protect the collection of
antidumping and countervailing duties commensurate with the level of risk of
noncollection.

(b)

Duties of
Director

The duties of the Director of the Trade Remedy Law
Enforcement Division shall include—

(1)

directing the
trade enforcement and compliance assessment activities of U.S. Customs and
Border Protection that concern evasion;

(2)

facilitating,
promoting, and coordinating cooperation and the exchange of information between
U.S. Customs and Border Protection, U.S. Immigration and Customs Enforcement,
and other relevant agencies regarding evasion;

(3)

notifying on a timely basis the
administering authority (as defined in section 771(1) of the Tariff Act of 1930
(19 U.S.C. 1677(1))) and the Commission (as defined in section 771(2) of the
Tariff Act of 1930 (19 U.S.C. 1677(2))) of any finding, determination, civil
action, or criminal action taken by U.S. Customs and Border Protection or other
Federal agency regarding evasion; and

(4)

serving as the
primary liaison between U.S. Customs and Border Protection and the public
regarding United States Government activities concerning evasion,
including—

(A)

receive and
transmit to the appropriate U.S. Customs and Border Protection office
allegations from parties of evasion;

(B)

upon request by
the party or parties that submitted an allegation of evasion, provide
information to such party or parties on the status of U.S. Customs and Border
Protection’s consideration of the allegation and decision to pursue or not
pursue any investigations or other actions, such as changes in policies,
procedures, or resource allocation as a result of the allegation;

(C)

as needed, request
from the party or parties that submitted an allegation of evasion any
additional information that may be relevant for U.S. Customs and Border
Protection determining whether to initiate an investigation or take any other
action regarding the allegation;

(D)

notify on a timely
basis the party or parties that submitted such an allegation of the results of
any civil or criminal actions taken by U.S. Customs and Border Protection or
other Federal agency regarding evasion as a direct or indirect result of the
allegation;

(E)

upon request, provide technical assistance
and advice to eligible small businesses to enable such businesses to prepare
and submit allegations of evasion, except that the Director may deny assistance
if the Director concludes that the allegation, if submitted, would not lead to
the initiation of an investigation or any other action to address the
allegation;

(F)

in cooperation
with the public, the Advisory Committee on Commercial Operations of the United
States Customs Service, the Trade Support Network and any other relevant
parties and organizations, develop guidelines on the types and nature of
information that may be provided in allegations of evasion; and

(G)

regularly consult
with the public, the Advisory Committee on Commercial Operations of the United
States Customs Service, the Trade Support Network, and any other relevant
parties and organizations regarding the development and implementation of
regulations, interpretations, and policies related to countering
evasion.

(c)

Preventing and
countering evasion of the trade remedy laws

In carrying out its
duties with respect to preventing and countering evasion, the National
Targeting and Analysis Group dedicated to preventing and countering evasion
shall—

(1)

establish targeted
risk assessment methodologies and standards—

(A)

for evaluating the
risk that cargo destined for the United States may constitute evading covered
merchandise; and

(B)

for issuing, as
appropriate, Trade Alerts described in subsection (d); and

(2)

to the extent
practicable and otherwise authorized by law, use information available from the
Automated Commercial System, the Automated Commercial Environment computer
system, the Automated Targeting System, the Automated Entry System, the
International Trade Data System, and the Treasury Enforcement Communications
System, and any successor systems, to administer the methodologies and
standards established under paragraph (1).

(d)

Trade
alerts

Based upon the application of the targeted risk assessment
methodologies and standards established under subsection (c), the Director of
the Trade Remedy Law Enforcement Division shall issue Trade Alerts or other
such means of notification to directors of United States ports of entry
directing further inspection, or physical examination or testing, of specific
merchandise to ensure compliance with the trade remedy laws.

(e)

Definitions

In
this section—

(1)

the term Advisory Committee on
Commercial Operations of the United States Customs Service means the
Advisory Committee established under section 9503(c) of the Omnibus Budget
Reconciliation Act of 1987 (19 U.S.C. 2071 note); and

(2)

the term
Trade Support Network means the network of private sector entities
that provide input on the design and development of modernization projects of
U.S. Customs and Border Protection.

by redesignating
subparagraphs (G) through (L) as subparagraphs (F) through (K),
respectively.

102.

Collection of
information on evasion of trade remedy laws

(a)

Authority To
collect information

To determine whether covered merchandise is
being entered into the customs territory of the United States through evasion,
the Secretary, acting through the Commissioner—

(1)

shall exercise all
existing authorities to collect information needed to make the determination;
and

(2)

may collect such
additional information as is necessary to make the determination through such
methods as the Commissioner considers appropriate, including by issuing
questionnaires with respect to the entry or entries at issue to—

(A)

a person who filed
an allegation with respect to the covered merchandise;

(B)

a person who is
alleged to have entered the covered merchandise into the customs territory of
the United States through evasion; or

(C)

any other person who is determined to have
information relevant to the allegation of entry of covered merchandise into the
customs territory of the United States through evasion.

(b)

Adverse
inference

(1)

In
general

If the Secretary finds that a person who filed an
allegation, a person alleged to have entered covered merchandise into the
customs territory of the United States through evasion, or a foreign producer
or exporter of covered merchandise that is alleged to have entered into the
customs territory of the United States through evasion, has failed to cooperate
by not acting to the best of the person’s ability to comply with a request for
information, the Secretary may, in making a determination whether an entry or
entries of covered merchandise may constitute merchandise that is entered into
the customs territory of the United States through evasion, use an inference
that is adverse to the interests of that person in selecting from among the
facts otherwise available to determine whether evasion has occurred.

(2)

Adverse
inference described

An adverse inference used under paragraph (1)
may include reliance on information derived from—

(A)

the allegation of
evasion of the trade remedy laws, if any, submitted to U.S. Customs and Border
Protection;

(B)

a determination by
the Commissioner in another investigation, proceeding, or other action
regarding evasion of the unfair trade laws; or

(C)

any other
available information.

103.

Access to
information

(a)

In
general

Section 777(b)(1)(A)(ii) of the Trade Act of 1930 (19
U.S.C. 1677f(b)(1)(A)(ii)) is amended by inserting negligence, gross
negligence, or after regarding.

(b)

Additional
information

Notwithstanding
any other provision of law, the Secretary is authorized to provide to the
Secretary of Commerce or the U.S. International Trade Commission any
information that is necessary to enable the Secretary of Commerce or the U.S.
International Trade Commission to assist the Secretary to identify, through
risk assessment targeting or otherwise, covered merchandise that is entered
into the customs territory of the United States through evasion.

The Secretary shall seek to negotiate and enter into
bilateral agreements with the customs authorities or other appropriate
authorities of foreign countries for purposes of cooperation on preventing
evasion of the trade remedy laws of the United States and the trade remedy laws
of the other country.

(2)

Provisions and
authorities

The Secretary shall seek to include in each such
bilateral agreement the following provisions and authorities:

(A)

On the request of
the importing party, the exporting party shall provide, consistent with its
laws, regulations, and procedures, production, trade, and transit documents and
other information necessary to determine whether an entry or entries exported
from the exporting party are subject to the importing party’s trade remedy
laws.

(B)

On the written
request of the importing party, the exporting party shall conduct a
verification for purposes of enabling the importing party to make a
determination described in subparagraph (A).

(C)

The exporting
party may allow the importing party to participate in a verification described
in subparagraph (B), including through a site visit.

(D)

If the exporting
party does not allow participation of the importing party in a verification
described in subparagraph (B), the importing party may take this fact into
consideration in its trade enforcement and compliance assessment activities
regarding the compliance of the exporting countries’ exports with the importing
countries’ trade remedy laws.

(b)

Consideration

The
Commissioner is authorized to take into consideration whether a country is a
signatory to a bilateral agreement described in subsection (a) and the extent
to which the country is cooperating under the bilateral agreement for purposes
of trade enforcement and compliance assessment activities of U.S. Customs and
Border Protection that concern evasion by such country’s exports.

(c)

Report

Not later than December 31 of each year
beginning after the date of the enactment of this Act, the Secretary shall
submit to the appropriate congressional committees a report summarizing—

(1)

the status of any
ongoing negotiations of bilateral agreements described in subsection (a),
including the identities of the countries involved in such negotiations;

(2)

the terms of any
completed bilateral agreements described in subsection (a); and

(3)

bilateral
cooperation and other activities conducted pursuant to or enabled by any
completed bilateral agreements described in subsection (a).

105.

Trade
negotiating objectives

The
principal negotiating objectives of the United States shall include obtaining
the objectives of the bilateral agreements described under section 104(a) for
any trade agreements under negotiation as of the date of the enactment of this
Act or future trade agreement negotiations.

II

Other
matters

201.

Allocation and
training of personnel

The
Commissioner shall, to the maximum extent possible, ensure that U.S. Customs
and Border Protection—

(1)

employs sufficient
personnel who have expertise in, and responsibility for, preventing and
investigating the entry of covered merchandise into the customs territory of
the United States through evasion;

(2)

on the basis of
risk assessment metrics, assigns sufficient personnel with primary
responsibility for preventing the entry of covered merchandise into the customs
territory of the United States through evasion to the ports of entry in the
United States at which the Commissioner determines potential evasion presents
the most substantial threats to the revenue of the United States; and

(3)

provides adequate
training to relevant personnel to increase expertise and effectiveness in the
prevention and investigation of entries of covered merchandise into the customs
territory of the United States through evasion.

202.

Annual report
on prevention of evasion of antidumping and countervailing duty orders

(a)

In
general

Not later than February 28 of each year, beginning in
2013, the Commissioner, in consultation with the Secretary of Commerce and the
Assistant Secretary for U.S. Immigration and Customs Enforcement, shall submit
to the appropriate congressional committees a report on the efforts being taken
to prevent and investigate evasion.

(b)

Contents

Each
report required under subsection (a) shall include—

(1)

for the calendar
year preceding the submission of the report—

(A)

a summary of the
efforts of U.S. Customs and Border Protection to prevent and investigate
evasion;

(B)

the number of
allegations of evasion received and the number of allegations of evasion
resulting in investigations by U.S. Customs and Border Protection or any other
agency;

(C)

a summary of the
completed investigations of evasion, including the number and nature of the
investigations initiated, conducted, or completed, as well as their
resolution;

(D)

with respect to
investigations that lead to issuance of a penalty notice, the penalty
amounts;

(E)

the amounts of
antidumping and countervailing duties collected as a result of any
investigations or other actions by U.S. Customs and Border Protection or any
other agency;

(F)

a description of
the allocation of personnel and other resources of U.S. Customs and Border
Protection and U.S. Immigration and Customs Enforcement to prevent and
investigation evasion, including any assessments conducted regarding the
allocation of such personnel and resources; and

(G)

a description of
training conducted to increase expertise and effectiveness in the prevention
and investigation of evasion; and

(2)

a description of U.S. Customs and Border
Protection processes and procedures to prevent and investigate evasion,
including—

(A)

the specific
guidelines, policies, and practices used by U.S. Customs and Border Protection
to ensure that allegations of evasion are promptly evaluated and acted upon in
a timely manner;

(B)

an evaluation of
the efficacy of such existing guidelines, policies, and practices;

(C)

identification of
any changes since the last report that have materially improved or reduced the
effectiveness of U.S. Customs and Border Protection to prevent and investigate
evasion;

(D)

a description of
the development and implementation of policies for the application of single
entry and continuous bonds for entries of covered merchandise to sufficiently
protect the collection of antidumping and countervailing duties commensurate
with the level of risk on noncollection;

(E)

the processes and
procedures for increased cooperation and information sharing with the
Department of Commerce, U.S. Immigration and Customs Enforcement, and any other
relevant Federal agencies to prevent and investigate evasion; and

(F)

identification of any recommended policy
changes of other Federal agencies or legislative changes to improve the
effectiveness of U.S. Customs and Border Protection to prevent and investigate
evasion.

inserting after
clause (iii), as redesignated by paragraph (2) of this section, the
following:

(iv)

Any weighted average dumping margin or
individual countervailing duty rate determined for an exporter or producer in a
review conducted under clause (i) shall be based solely on the bona fide United
States sales of an exporter or producer, as the case may be, made during the
period covered by the review. In determining whether the United States sales of
an exporter or producer made during the period covered by the review were bona
fide, the administering authority shall consider, depending on the
circumstances surrounding such sales—

(I)

the prices of such
sales;

(II)

whether such
sales were made in commercial quantities;

(III)

the timing of
such sales;

(IV)

the expenses
arising from such sales;

(V)

whether the
subject merchandise involved in such sales were resold in the United States at
a profit;

(VI)

whether such
sales were made on an arms-length basis; and

(VII)

any other factor
the administering authority determines to be relevant as to whether such sales
are, or are not, likely to be typical of those the exporter or producer will
make after completion of the
review.

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